INTRODUCTION:-
Adoption and guardianship is one of the most crucial elements of life of human being. However, under Muslim Community the right to adopt a child and rights of adoptive parents has always been a concern for the reasons that even after 7 decades of independence there is no uniformity in law related to adoption in the country.
Under Muslim Community the rules related to marriage, divorce, inheritance and adoption are governed by personal law or Shariat Act and the Muslim personal law does not recognize the adoption by Muslim parents. In Islamic jurisprudence there is concept of “KAFALA” which is not similar to the adoption, but just to take care of adopted child it may taken by other Muslim parents but said child always remains son/ daughter of his biological parents and cannot inherit the property of the adoptive person.
That for aforesaid reasons adoption of Muslim child is not only low but the adopted child is also not considered as legal or natural child of adopt person rights of child. However, due to judicial activism and also due societal changes which led to enactment of neutral and secular law related to adoption, some landmark development have been observed in country related to adoption of child particularly by a Muslim parents. By this article an attempt has been made to elaborate the process of adoption and rights of adopted child by Muslim Parents in lights of the recent enactments and also in light of the judgment passed by Hon’ble Courts.
Adoption under Muslim Personal Law:
Muslim personal law does not recognize the adoption by Muslim parents. Moreover, Quran expressly prohibits adoption as a mode of accepting other’s child as one’s own. However, in pre-Islamic era adoption was common but same was in practice neither for reasons of religious nor to include the adopted child in family due to love and affection rather object of such adoption was to strengthen the manpower for wars.
That interestingly some enactment in past like Oudh Estate Act, 1869, provided adoption by Muslim Talukedar. Further, before enactment of the Shariat Act, 1937 adoption under certain sections of Muslims was prevalent under their
customary laws. That after enactment of the Shariat Act, 1937 the matter related to the marriage, adoption, will etc. were to be governed by the Muslim law.
For adoption Muslims are bound to follow Kafala system under which a child is placed under a Kafil (guardian) who takes care of child’s upbringing, marriage, well-being but child continues to remain the descendant of his biological parents and not adoptive ones. Further, an adopted child cannot inherit guardian’s property and retains his biological name. If child’s family is not known, only then he can carry the name of adoptive family.
The rules of adoption under Muslim Law are as under:
- The adoptive parents are not permitted to hide the identity of the Child’s biological
- The tie of the child with his biological parents is never
- Adoptive parents are not the biological parents of the adoptive
- In Islam adoption means ‘Kafala’. It means ‘to freed’. In other words the foster – parent
- The adoptive parents are not allowed to change or alter the name and surname of the adoptive
- Adoptive child inherits from his biological parents and not from his adoptive
- As soon as the adoptive child becomes grown up the adoptive family ceases to be his blood
- Adoptive parents are not allowed interfere with the property of the child given for They are merely the trustee of such property.
However, in Maulvi Mohammad vs. Mahboob Begum the Madras High Court has held that if custom of adoption is prevailing it prevailing it can be pleaded and proved. Further, if such custom is proved than there is no need of any declaration required under section 3(1) of Shariat Act, 1937 so as to rule out existence of custom of adoption.
Can a Muslim parent adopt a child outside the personal laws:
For first time rights to adopt a child by a Muslim Parents was elaborately discussed in the judgment of Lakshmikant Pandey vs. Union of India (1984)
2 SCC 244. The said judgment Hon’ble Supreme Court opened the door for adoption of child as natural or legal guardian for all the communities in India including Muslim, Christian, Parsi, Jews. In this judgment Hon’ble Supreme court took the view that every child have right to love and be loved and to grow in atmosphere of love and affection and material security and this is
possible only if a child is brought up in a family. The most congenial environment would of course would be that of his biological parents. But if for any reason it is not possible for the biological parents or near relative to look after the child or the child is abandoned and it either not possible to trace the parents or parents are not willing to take care of child , the next alternative would be to find adoptive parents for the child so the child can grow under the loving care and attention of the adoptive parents. The adoptive parents would be next best substitute of for biological parents.
Norms for Adoption of Child:
After aforesaid Judgment a statutory body namely Central Adoption Resource Authority (CARA) was established by Ministry of Women & Child Development, Government of India in 1990.
The CARA functions as the nodal body for adoption of Indian children and is mandated to monitor and regulate in-country and inter-country adoptions. CARA has been playing pivotal role, laying down norms both substantive and procedural which primarily deals with adoption of orphan, abandoned and surrendered children through its associated /recognized adoption agencies. The norms CARA got statutory recognition under Juvenile Justice (Care & Protection of Children) Act, 2000.
Landmark Judgments Related to Adoption of Child
In Shabnam Hasmi vs. Union of India Case the Hon’ble Supreme Court held that under Juvenile Justice (Care & Protection of Children) Act, 2000 a Muslim couple can also adopt a child with full rights as natural parents. That adoption under Juvenile justice is not mandatory rather prospective Muslim parents have option to adopt a child under section 41 of Juvenile Justice (Care & Protection of Children) Act, 2000 or may also choose to go with applicable personal law.
That in aforesaid judgment it was also held that personal law cannot sit over the operations of the provisions of the JJ Act rather if a Muslim person has opted to adopt a child under the JJ Act shall have overriding effect over the personal law.
The Juvenile Justice Care & Protection Act, defines the adoption as: “The process through which adopted child is permanently separated from his biological parents and becomes lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child”
Unlike the Kafala system under JJ Act if a Muslim couple adopts a child then adopted child shall have shall be considered the child separated from the biological parents and become legitimate child of his adoptive parents with all rights, privileges and responsibilities that are attached to the relationship.
Since, adoption under the JJ Act is an enabling provision which seeks to achieve objection provided under Article 44 of the Constitution of India to achieve uniform civil code. Muslim parent have an option to adopt under this provision on not and if a child is adopted under provisions of JJ Act, then adopted child shall have the following rights:
Key Features of JJ Act related to adoption by Muslim Parents:-
- A Muslim parent can also opt to adopt a child under these
- The Adopted child shall be considered as the legitimate child of the Muslim
- The adopted child shall have all the rights related to
- The adoptive parents shall have all the rights, privileges and responsibilities that are attached to a biological
- The adoptive Muslim parents and the adopted child shall be under the supervision of the CARA as the provisions the JJ
References:
- Juvenile Justice (Care & Protection of Children) Act,
- Lakshmikant Pandey Union of India (1984) 2 SCC 244
- Muslim Law, Sixth Edition, R. K. Sinha, Central Law Agency
- Shabnam Hasmi Union of India (2014) 4 SCC 1